Class Action OKd Against Rocketdyne
Essentially adding 200,000 or more new plaintiffs, a federal judge on Monday allowed Rocketdyne neighbors to press a class-action lawsuit against the aerospace giant, alleging that activities at four facilities fouled their property and harmed their health.
U.S. District Judge Audrey B. Collins granted class certification to the neighbors in a tentative ruling, allowing them to press their claims en masse rather than one at a time.
Collins denied a similar motion in October but allowed lawyers another attempt at meeting the exacting requirements of class-action law.
Conservatively, the technical decision expands the class of plaintiffs from the eight people named in the lawsuit to more than 200,000 people in the Simi and San Fernando valleys, plaintiffs’ lawyers said.
Neighbors in the case demand compensation for property they claim was damaged by years of nuclear research and rocket engine testing at Rocketdyne’s Santa Susana Field Laboratory, in the hills between Chatsworth and Simi Valley, and three other facilities in the west San Fernando Valley.
They also seek court-sponsored medical monitoring to ensure that any cancer or other illnesses they may develop are promptly detected.
The class includes anyone who currently owns property or has lived at any time since 1946 in the alleged “contamination area,” which covers about two-thirds of the area bounded by the Ventura, Moorpark and San Diego freeways and the Santa Susana Mountains.
Experts say the decision to certify the class will raise the stakes in the federal lawsuit, putting additional pressure on Boeing North American, Rocketdyne’s parent company, to settle the case and raising the amount of money that could be given to plaintiffs.
Class Action Raises the Stakes
Attorneys for the neighbors said the 16-month-old lawsuit is just beginning, despite Monday’s favorable ruling.
“It’s a long way to go from here,” said lawyer A. Barry Cappello. “It’s like that [sports] team whose plane crashed in the Andes: We have survived the plane crash, but we still have to cross the Andes to get home.”
The certification is a blow for Boeing just a week after the aerospace giant won a significant battle in two similar, but unrelated, cases pending in state court. Those cases were largely gutted because of statute-of-limitations concerns, issues that will probably be raised in the federal case.
“We’re obviously disappointed with the judge’s ruling,” said Gary M. Black, chief counsel for Boeing. “We really are surprised by it, since last October, the judge was pretty clear on what was required to certify a class . . . and we think the plaintiffs failed miserably.”
Although Boeing cannot appeal the decision to certify the class, Collins called the decision “conditional” in her 64-page ruling. She could opt to decertify the class at any time during the case.
Although the decision to allow the class-action suit does not necessarily mean the neighbors are any more likely to win their case, it intensifies the case for all the players, said John P. Dwyer, a professor at UC Berkeley’s Boalt Hall School of Law.
“In terms of damages, it raises the stakes for the defendants by creating a risk of a bigger payout because there are more properties involved and a larger number of people seeking medical monitoring--a significantly larger number if you’re going from eight to 200,000 plaintiffs,” said Dwyer, who specializes in environmental and property law.
If the plaintiffs have a strong case, the certification of a class may also encourage Boeing to settle out of court rather than face a possible verdict.
“Settlement involves a lot of factors,” Dwyer said. “The class certification may increase the probability that the defendants seek a settlement because the potential property damages are so much greater. On the other hand, the defendant might reasonably be worried about other lawsuits, or may feel the case is weak on its merits, and may decide they’re better off fighting to a successful conclusion than reaching a settlement.”
In court Monday, lawyers on both sides of the case sparred about whether the judge had reason to believe radioactive and cancer-causing agents had seeped down from the open-air field lab to foul the water and soil in surrounding areas.
Boeing lawyer John A. Reding argued that the class should not be certified because no off-site contamination had been proven except in a small area of the uninhabited Brandeis-Bardin Institute and Sage Ranch, which border the field lab.
“Show me the exposures,” Reding said. “Show me that property or people or goldfish or anything have been contaminated. If they can do that, more power to them. . . . [So far,] there is not a shred, a scintilla, a fragment of evidence that anyone has been exposed to anything.”
Collins pointed out that, at this stage in the game, the neighbors’ lawyers were not required to prove that properties outside of the 2,688-acre field lab had been contaminated with harmful chemicals.
Showing Probability of Contamination
To certify a class, the plaintiffs only had to show a strong probability that contaminants worked their way downhill and into the surrounding communities of the Santa Susana Knolls, Simi Valley, Chatsworth, West Hills and Bell and Box canyons.
“I’m not interested in credibility [of experts] at this point,” the judge said during the hearing. “This is not a credibility hearing. This is not a merits hearing.”
Although the neighbors contend that a handful of toxic chemicals and radionuclides have reached their properties, most of the case so far has involved hexavalent chromium and trichloroethylene. These two chemicals are now known to cause cancer, but they were commonly used decades ago to prevent rusting of cooling towers and to flush out rocket launchers after test-firing, respectively.
In a document filed April 15, Cappello and his colleagues argued that it was reasonably probable that contamination had leached off-site. That conclusion was reached by air and ground-water experts after examining Rocketdyne emissions data for hexavalent chromium and TCE.
Based on the geography of the area, and the amount of the chemicals used, the experts charted contamination plumes. Drawn on a map, the plumes resemble brightly colored, Rorschach-like blobs showing the ground-water plume from Rocketdyne’s field lab and the air plumes from the Santa Susana and Canoga Avenue facilities.
The outer boundaries of the contamination area mainly reach the surrounding freeways, but, because of the irregular shapes of the plumes, only about two-thirds of the area is covered--including most of Simi Valley and portions of Chatsworth, West Hills, the Santa Susana Knolls and Bell and Box canyons.
In a brief filed before Monday’s hearing, Cappello argued that Rocketdyne’s “story is a textbook example of environmental catastrophe . . . , a history replete with reactor meltdowns and other nuclear ‘accidents,’ explosions, repeated toxic fires and spills, ongoing improper waste disposal practices, and the generation of tons of hazardous waste.”